TRIAL BY JURY

Dominion, Volume 29, Issue 255, 24 July 1936, Page 12

TRIAL BY JURY

Restoration of Right in

Civil Actions AMENDING BILL Special Juries of Experts Some quaint and almost archaic features of New Zealand law in respect of the appointment of jilries to hear civil actions were discussed in the House of Representatives yesterday afternoon. The subject was raised in the second reading debate on the Judicature Amendment Bill. The whole of the afternoon was taken up by the discussion. Of the nine members who discussed the measure six were lawyers. The Bill was read a second time. Before 1925, the Attorney-General said, the position was that parties had greater rights to have cases tried by juries than they had at present, lhe proposal was to restore largely the rights that had existed before 1920. The procedure then was that in a claim for less than £5O the action was heard by a judge alone; in a claim for a sum between £5O and £5OO, the action could be heard, by a judge and jury of four; and where a sum over £5OO was involved the case was heard by a judge and a jury of 12. That system had worked quite well, but there was a provision that the judges could from time to time alter the code of procedure. The position was that although the jury system was established by Act of Parliament it was m a form which left it to the judges to say whether or how far it should continue. As a result of a decision by the judges in 1925 the right of trial by jury had been seriously curtailed. There was also diffic.ulty, Mr. Mason continued, as a result of the decision of the judges that only civil cases involving pure tort were to be tried by a jury. That ruled out the whole class of contractual cases and the change was thought to be unsatisfactory in practice. . . Mr. W. P. Endean (Opposition, Parnell) : Have you consulted the judges? The Attorney-General: I do not think it would be proper to do so. Mr. Endean: What does th fi profession think about it? The Attorney-General: The profession generally Is strongly in favour of the old system to which we propose to revert.

A Relit of tlie Past

The system of trial by special juries was also referred to by Mr. Mason, who said that such juries might be needed in cases where expert knowledge was required. In the regulations governing the appointment of special juries there was reference to persons “of the best Condition.” That certainly suggested some social prejudice and there had been a tendency to abuse the, special jury system when it was thought that such a prejudice might be helpful to a particular party. Probably the system in its present form was a relic of the days when many people could neither read nor write.

Tlie new provision, allowing special juries of experts in cases where mercantile and banking matters arose, would clear up the matter and remove any question of prejudice. Under the old system an auctioneer might be called on to serve on a special jury in a case where a builder’s labourer would have far more expert knowledge of the matters in dispute. If there were to be special juries of experts, it was advisable that they should be composed of experts in the particular questions at issue and not merely men ‘‘of the best condition.” “If the law is put on a useful basis,”. Mr. Mason added, “a fereat deal of time can be saved and the best interests ot justice will be served.” Non-Co-operation with Judiciary. Regret that the Attorney-General had not co-operated with the judiciary in deciding whether the amendments were in the best interests of litigants was expressed by Mr. Endean. He said he understood the present rules were introduced by the judiciary of which the late Sir Charles Skerrett was a member. Members of tlie legal profession in the House would know it was possible for a skilful advocate to frame the issues so as to influence a jury and gain au advantage. The present system of trial by a judge alone was in the best interests of litigants. He regretted that the Attorney-General had raised the question of social prejudice in reference to the special jury system. That had nothing to do with the matter.

“The judge is in charge of a case, and nothing can be put across a jury unless it is in accordance with the law and fact,” said Mr. F. W. Schramm (Government, Auckland East). The late Sir Charles Skerrett, he added, was not a jury lawyer. Sir Charles was strictly a banco lawyer, who argued on questions of law. There had been no complaint about the law as it existed before the change made in 1925. The judges had thought they could improve the code of civil procedure, but it was never intended that they should alter the rules -without reference to the Legislature. There were many who questioned whether the judges had not gone too far. Their amendments were not in keeping with the opinion of the profession. The judges had dealt with a vital matter, not a mere question of procedure. Mr. W. A. Bodkin (Opposition, Central Otago) said he was sorry it had not been thought fit to send the Bill to the Statutes Revision Committee, which was set up to deal with cases of that kind. He did not know that there was a great deal in the Bill to which exception could be taken, because, after all, the question of trial by jury or before a judge alone in the cases referred to was optional. He did not see why special juries should be limited to cases in which a knowledge of banking or mercantile transactions was considered necessary, as there were other types of cases where technical knowledge might be required. Good Case for Either Side. Mr. W. J. Broadfoot (Opposition. Waitomo), who also stated that the Bill should have been sent to a committee, said it was possible to put up a good case for either side. No great injpstice had been done, even though the rules had been altered in 1925. If there had been any injustice it would have brought vociferous objections from the legal profession. A suggestion that the country could do very well without the services of grand juries was made by Mr. R. A. Wright (Independent, Wellington Suburbs). “Generally the jury system appears to me to he unsatisfactory,” he said. "The average jury, as it is empanelled, is unsatisfactory. The trouble is that some of the best men in the country are not on the common jury

roll. They are absorbed in other directions. The grand jury takes a good many of the best brains available, absorbing men whose qualifications would be more than useful on common juries. I venture to say that the grand jury is not necessary at all—that it is the fifth wheel on the coach. It seems to me that it could very well be done away with and its members better occupied ou the common jury. Generally, the empanelling of the common jury is limited to a large extent by the exclusion, as well, of the civil servants. I think that the judges, in deciding that certain cases should be removed from the jury list altogether, did what was quite right.” Mr. A. C. A. Sexton (Independent, Franklin) said that trial by jury was one of the greatest safeguards which the ordinary citizen had against the Crown becoming too powerful. The grand jury offered a safeguard to the private individual which on no account ought to be done away with. The increase in general education in the Dominion had to a large extent done away with the need for special juries. Mr. T. H. McCombs (Government, Lyttelton) said the original intention of the jury system had been that a man should be tried by persons of equal station with himself. It seemed that the Bill would have the effect of reinstating that plank of British justice. After the Attorney-General had re- I plied to the debate, the Bill was read | a second time.